DATE: April 27, 1990
CASE NO. 90-STA-10

IN THE MATTER OF

RONALD HAUBOLD,
   COMPLAINANT,

v.

GRAND ISLAND EXPRESS, INC.,
   RESPONDENT.

BEFORE:    THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. andO.) of Administrative Law Judge (ALJ) Thomas M. Burke, issued on March 16, 1990, in the above-captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 2305 (1982).

   Complainant, formerly employed as a truck driver for Respondent, a commercial motor carrier, alleges that he was blacklisted by Respondent from finding employment as a truck driver because he (Complainant) had filed a complaint against Respondent with the United States Department of Transportation alleging that Respondent violated Federal motor carrier regulations.

   A hearing on this complaint was held on January 10, 1990, at which hearing Complainant appeared pro se. After Complainant presented his case, the ALJ concluded that Complainant had failed to establish his prima facie case and, accordingly, granted Respondent's motion for dismissal under Rule 41(b) of the Federal Rules of Civil Procedure.¹ Rule 41(b) provides for dismissal of a cause of action "[a]fter the plaintiff . . . has completed the presentation of evidence . . . on the ground that upon the facts and the law the plaintiff has shown no right to relief."

   In determining whether to accept the ALJ's recommendation that this case be dismissed pursuant to Rule 41(b) I have limited my review to an examination of whether

   Upon a thorough review of the record, I agree with the ALJ that Complainant has failed to establish his prima facie case of discrimination in that he has not presented evidence from which an inference of a causal connection between activity protected by the STAA and the adverse action taken against him can be drawn.² Furthermore, I accept the ALJ's recommendation that Respondent's motion for dismissal pursuant to Rule 41(b) be granted.

   Accordingly, having concluded that the ALJ's R.D. and O. is supported by substantial evidence and is in accordance with law, the complaint in this case is DISMISSED.

   A copy of the ALJ's R.D. and O. is appended hereto.

SO ORDERED.

         Elizabeth Dole
         Secretary of Labor

Washington, D.C.

¹The regulations applicable to STAA cases, 29 C.F.R. Part 1978 (1989), provide that hearings shall be conducted pursuant to the rules of practice and procedure for administrative hearings before ALJs in 29 C.F.R. Part 18. 29 C.F.R. 1978.306(a). Section 18.1(a) of 29 C.F.R. provides that the federal rules "shall be applied in any situation not provided for or controlled by [the Part 18] rules, or by any statute, executive order or regulation." Resort to the federal rules was properly invoked here.

²In his analysis of the facts, the ALJ found that Complainant "has not produced any proof of a causal link between the protected expression and the adverse employment action. Proof that Respondent disseminated false information about Complainant's driving record is a necessary element of his claim of retaliatory treatment under the Act. It cannot be inferred from his inability to find

work." R.D. and O. at 8 (emphasis supplied.) This statement indicates that direct evidence of a discriminatory motive is required for establishment of a prima facie case. Such direct evidence, however, is not required. Under the burdens of proof applicable in STAA cases, Complainant need only provide evidence of circumstances which give rise to an inference that the protected conduct was the likely motive for the adverse action. McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final Decision and Order, July 9, 1986, slip op. at 10-11 quoting Dartey v. Zack Company, Case No. 80-ERA-2! Sec. Dec. and Final Order, April 25, 1983. Such circumstances include actions which, if unexplained, are more likely than not to have been based on a discriminatory motive. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Although the ALJ did not accurately articulate Complainant's burden as to causal connection, he recognized that "[a]s to causation, proof must be offered which raises the inference that participation in the protected activity was a substantial motivating factor in the adverse employment decision." D. and O. at 6 (emphasis supplied.)